Our Dispute Resolution Department has extensive experience in advising and obtaining a variety of Injunctions.
There are occasions when it is necessary to obtain an Injunction to restrain certain activities of the parties until a trial has taken place and the Court has made a final decision. In those cases, the Court can grant an Interim Injunction.
There are often common commercial scenarios upon which Injunctions might be necessary if the other party, if unrestrained, may cause irreparable or immeasurable damage by continuing in the conduct which has caused the litigation. An Injunction can also be granted after a trial has taken place, for example should it be necessary to preserve assets, pending enforcement of the Judgment.
Interim Injunctions
An Interim Injunction can only be granted after litigation has commenced or in an emergency situation, but in this circumstance an undertaking would have to be given that the litigation would be started immediately. It will, therefore, not be granted in isolation.
The usual purpose of the Injunction will be to preserve the legal standing of the parties until their rights have been determined. It would have to be demonstrated to the Court that there is good reason why the Defendant’s rights should be restricted without knowing whether or not the Claimant will succeed in the litigation.
At this juncture, the Claimant would not have to prove it’s underlying claim, but that it has good prospects of succeeding. The Court would have to be persuaded that there are serious issues and the Court would then have the discretion to grant an Injunction.
Procedure
If there is an emergency, an application for an Injunction can be made on a without notice basis to the other side and should an Interim Injunction be granted, the Court would then later hear argument and evidence from both parties. In order to obtain the Injunction, an application would have to be made together with an Affidavit in support. All key documents would have to be referred to and annexed in the Affidavit and the Affidavit would have to be sworn by the Claimant or an officer of the Claimant company. The purpose of the Affidavit is that if an Injunction is obtained with the help of an untrue statement contained in the Affidavit, then the person who swore the Affidavit could potentially be charged with the criminal offence of perjury.
When making an application on a without notice basis, the Court places a degree of trust in the Applicant to tell the entire story and, therefore, it is important to ensure that the Applicant is not misleading the Court, whether by omission or otherwise. The consequence of failing to disclose a material fact may be that the Injunction, if granted, will be set aside and the Claimant would have to pay any costs incurred by the other side together with damages for any loss suffered by the Defendant as a result of the Injunction.
The duty of disclosure applies to material facts to the Claimant and to any additional facts which should have been known if proper enquiries had been made. Furthermore, there is a duty to correct any misinformation or omission as soon as it becomes apparent.
Injunctions may be granted on an interim basis as above or on a final basis in litigation.
Our Dispute Resolution Department is able to advise our clients whether an Injunction is suitable and whether or not it meets the objectives of our client. We advise our clients in respect of all of their options before embarking on litigation and these can include mediation or other forms of alternative dispute resolution.
Examples of where Injunctions might be necessary are as follows:-
In addition to our Dispute Resolution Department having suitable experience in giving advice and obtaining Injunctions, we can also offer advice in defending Injunctions and setting these aside.
Freezing Orders
There are various types of Injunctions that can be obtained, but commonly it is possible to obtain a Freezing Order if there is a risk that the other party is likely to dissipate it’s assets before the trial or attempts to dispose or deal with the assets within the jurisdiction in such a way as to leave the final Judgment unsatisfied.
Alternatively, a Freezing Order can be granted after Judgment has been obtained as an aid to execution of an English or a foreign Judgment.
The English Court has jurisdiction under Section 37 of the Supreme Court Act 1981 to make Freezing Orders, not only for the purposes of English proceedings but also where there are assets within the English Courts’ jurisdiction, in aid of substantive proceedings in other jurisdictions.
A Court Order can be made to freeze the other party’s Bank accounts and other assets to ensure that such assets will still be available to satisfy any Judgment which may ultimately be obtained.
We are happy to advise whether a Freezing Order is appropriate and the benefits in obtaining a Freezing Order is that if it is granted, the Defendant will then be prohibited from dealing with his property/assets. The Defendant is likely to then be allowed a specific weekly amount to meet his day-to-day living expenses.
In an emergency situation, a Freezing Order can be obtained without giving notice to the other party. This often occurs where the other party will take advantage if given notice of the application or where further damage would result from any delay in making the application.
Search Orders
A Search Order is a Court Order requiring a Defendant to grant access to a property and/or premises to allow the Claimant to conduct a search for evidence that may easily be disposed of upon notice of legal proceedings. Such an Order is applied for (to the Court) without notice to the Defendant.
These types of Order were formerly known as Anton Pillar Orders and are usually available where documents or property has been stolen or some other history of dishonesty on the part of the Defendant is demonstrated. Occasions where such an Order may be necessary are, for example, in intellectual property legal proceedings.
To satisfy the criteria for obtaining a Search Order, the following has to be demonstrated:-
In addition, the Court must also be satisfied that there is a strong prima facie case, that the damage, potential or actual, must be very serious, that there must be clear evidence that the Defendant has, in their possession, incriminating documents and that there is a real possibility that the Defendant may destroy such material before an On Notice application is made and that the harm likely to be caused by the execution of the Search Order on the Respondent and his business affairs must not be out of proportion to the legitimate object of the Order.
Disclosure Orders
If you are embroiled in litigation proceedings, the normal order for disclosure will be that each party do give standard disclosure. In order to give standard disclosure, the disclosing party must make a reasonable search for documents.
There are occasions when it is necessary to seek an Order from the Court for disclosure of documents. There are occasions when this can be dealt with at the Action stage or once proceedings have been commenced. It may also be possible to obtain an Order against a non-party for disclosure of documents and the Dispute Resolution Team at Paris Smith can advise on the merits in making an application for disclosure and the consequences of such an Order.
In addition, we regularly advise our clients in setting aside such Orders and an application can be made to set aside an Order, if appropriate.
